Director of Public Prosecutions v Zhang
[2019] VCC 1962
•27 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUIBO ZHANG |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 November 2019 |
| DATE OF SENTENCE: | 27 November 2019 |
| CASE MAY BE CITED AS: | DPP v Zhang |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1962 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence — procuring sexual act by fraud — blackmail — threat to kill — plea of guilty — prospect of visa cancellation and deportation — no criminal history — question of discretionary registration under Sex Offenders Registration Act 2004
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: Onnis v The Queen [2013] VSCA 271
Sentence: Total effective sentence of 30 monthsSection 6AAA declaration: total effective sentence of 4 years with non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | D Hogan | Solicitor for the Office of Public Prosecutions |
| For the Accused | J McMahon AC SC and J Taaffe | Doogue + George |
HER HONOUR:
1Ruibo Zhang, you have pleaded guilty to two charges of procuring a sexual act by fraud (Charges 1 and 2) for which the maximum penalty is a term of imprisonment of 5 years.
2You have also pleaded guilty to a charge of blackmail (charge 3) for which the maximum penalty is a term of imprisonment of 15 years and to a charge of making a threat to kill (charge 4) for which the maximum penalty is a term of imprisonment of 10 years.
3You have no prior criminal history.
4Tendered on the plea as exhibit 1 was a Summary of Prosecution Opening and I incorporate that document into my reasons for sentence.
5In brief, the circumstances of your offending were as follows.
6You were born on 11 July 1989 in China.
7At the time of the offending in September and October 2018 you were 29 years of age, married and living in Australia. You held a temporary work visa and worked as a real estate agent.
8The victim in this matter is Laura Blank.[1] At the time of the offending Ms Blank was 23 years old. She was a Chinese national and was studying at Monash University.
[1] This is a pseudonym name.
9You met Ms Blank on WeChat, the Chinese multi-purpose online chat platform.
10Before meeting Ms Blank you had read in a news article in China about people posing as businessmen running escort agencies and having sex with job applicants. The article apparently gave you the idea to create a false persona and carry out the same kind of deception.
11On WeChat, you made contact with Ms Blank and falsely represented that you were a man named “Jason” who had escort work available with wealthy Chinese clients with prospective earnings of up to $10,000 a week. You stated that the work was safe, with all clients being foreign delegates, not locals. This reassured Ms Blank that she would not encounter anyone she knew. You told Ms Blank that she needed to participate in an interview. Ms Blank understood that this would involve sex but she was amenable to this, “not on the basis he would offer me work, it was on the basis he told me the interviewer was young and handsome”. She further stated that she “wasn’t interested in performing this job, I was interested in knowing how this system works”.
12On 5 September 2018, you met Ms Blank at her apartment for the interview and had consensual sex. You purported to be the interviewer arranged by “Jason”. Ms Blank had sex with you on the understanding that she was trialling for work as an escort with a legitimate prostitution service provider. This was not the case. In fact, you were exploiting Ms Blank for your own sexual gratification (charge 1).
13On 20 September 2018, you contacted Ms Blank on WeChat and told her you had a big customer arriving in Melbourne next weekend. You asked her if it was okay to ejaculate in her mouth and she said it was. You said that the prospective client was a boss for a big listed company in China and she would receive around $6000–$8000 in payment. You said she needed to come in and get some tips, presumably about how to please the client.
14You arranged for Ms Blank to meet for an interview for this job, this time at 18 Newbury Street, Keysborough, a property listed with your employer AlexKarbon Real Estate. Ms Blank was hesitant about being interviewed for a second time and began contacting you saying that she no longer wanted the job. You began pressuring her to attend. You messaged her, telling her you knew her name, and where she lived and studied. You said in one message, “Okay we will let you know the consequences of fooling us”.
15Ms Blank became fearful and felt threatened. When she did not attend at the Keysborough address for the interview you demanded she pay the sum of $589.00 to purportedly cover the loss of the rent, labour costs and the interviewer’s travel expenses. Ms Blank said she would pay via WeChat but you insisted on cash and also insisted that Ms Blank participate in another interview. Ms Blank responded that she would give you the cash but would not participate in another interview and she stated that “this matter is over”.
16On 21 September 2018, Ms Blank attended at an apartment at 35 Arden Street, North Melbourne, as directed by you. Here she paid you $600 cash (charge 3). You became angry and insisted on the interview taking place. She insisted she did not want to take part in the interview and did not want the job.
17Ms Blank felt scared and thought about the messages she had received from “Jason” on the previous night.
18She did not want to have sex with you but was scared of making you angry. You pushed her down and got her to suck your penis. You were not wearing a condom. You grabbed her by the hair and turned her head so that she could see herself in a large mirror. You said, “look at yourself, you are just like a whore, you like this right?”. You then moved Ms Blank on to a bed where you penetrated her vagina with your penis. You were not wearing a condom and you ejaculated in her vagina (charge 2). You told Ms Blank she could not have a shower and that she should use toilet paper to clean herself up.
19After this incident Ms Blank sent you a message saying, “I don’t have any complaints now. The interviewer is quite nice.” She also messaged saying, “yesterday you gave me an impression you’re a group of gangsters. I was wrong yesterday. But you overreacted … I find it strange as well”.
20On 9 October 2018, you messaged Ms Blank on WeChat asking if she was ready to work again. She replied that she did not have the time.
21On 11 October 2018, you messaged Ms Blank stating you were ordering some sexy outfits for her and that she needed to cover the cost of $597.00.
22Ms Blank replied that she did not have the money. From this point you sent numerous threatening messages. You threatened that you had connections to ‘Fuqing’ gangsters and said, “You really need a lesson now. If you’re not at home, we’ll find you at school. Fuqing gangsters are capable of everything … Brothers of Fuqing gangsters have been holding back for a long time and you are the right girl for them to take it out on”.
23You continued to message Ms Blank, saying, “Do you reckon 500 is enough? Instead, let all of them rape you, ejaculate inside you and make you pregnant, and then go to your school and spread the news. Probably they are okay with that, and you don’t have to pay them money”. You then demanded $2000.00 from Ms Blank and messaged, “if money can make them happy, possibly no physical harm will be caused to you”.
24On 12 October 2018, you messaged Ms Blank asking how she was going getting the money. You said, “Get ready it must be the correct amount. They will send someone to your home to collect it around 1pm tomorrow. Make sure no one is home as they want to fuck you.”
25At 3.00pm Ms Blank attended at the Caulfield police station to report the matter.
26You continued to attempt to contact Ms Blank on WeChat. You sent her messages saying, “You really want to die darling?”, “We’ll torture you to death” and “Is your housemate happy to rape you as well? We’ll invite your housemate to join the gang rape” (charge 4).
27On 13 October 2018, you messaged Ms Blank saying “did you get the money ready” and “they’ll send people over at 1.30”.
28Ms Blank responded that she was at home and had the money.
29You attended at a house in Kavanagh Street, where police were waiting. You were arrested and taken to the Melbourne West Police Station.
30You participated in a record of interview, where you told police that you did not know Ms Blank and denied ever having sex with her.
31You told police you only had one WeChat account in the name of Bob Zhang (Q & A 89–94) and when shown the WeChat messages between yourself and Ms Blank you denied that they had been sent from your WeChat account (Q & A 338–41).
32You told police you had attended at Kavanagh Street to do a letter drop in relation to your work as a real estate agent and to meet a client there (Q & A 141–54).
33You said you had never talked with anyone about gangsters (Q & A 276–81).
34After a change in your legal representation in April 2019 you offered to plead guilty to the charges on the Indictment at committal mention on 6 May 2019. This offer was then rejected by the prosecution. There was a committal hearing on 6 June 2019, and on 6 July 2019 the matter was resolved on the same basis as the 6 May 2019 offer made by you. Accordingly, this is a plea at an early opportunity. Your plea has utilitarian value in that it has saved the community the cost of a trial and has saved the victim attending court and giving evidence. Additionally, I accept your plea is indicative of remorse.
35A letter from you to the Court was also tendered on the plea (Exhibit G) in which you apologise for your offending and I also accept that this is indicative of remorse on your part.
36There was a victim impact statement made by Ms Blank; it is clear that this was a frightening experience for her and she speaks of the ongoing effects of your offending upon her. She says she experiences insomnia and binge eating, and has had suicidal thoughts. She says she was embarrassed to tell anyone what has happened to her because she is ashamed and fears being judged.
37I turn now to your personal circumstances.
38You were born in China. You are an only child. Your father was a policeman and your mother was a teacher. You grew up in a provincial town but at 16 you went to study in Beijing. You then went on to study in Singapore where you studied English and business.
39You came to live in Australia at the age of 21. You studied at Deakin University and you did numerous part-time jobs. You lived in Box Hill and attended the Chinese Christian church. You were able to afford visits home to China to see your family. You completed your studies in 2013.
40You began working in real estate, dealing with Chinese clients. References from your colleagues at your employer AlexKarbon were tendered at the plea (Exhibits B, C and D). They all speak of your good work ethic and good character. I do note however you used properties connected with your employer in connection to your offending, which undermines to some extent the good effect of the references tendered on your behalf.
41I do however accept that you have a good work ethic and prior to this offending were a person of good character.
42In 2016, your parents in China noticed that you spoke with them less frequently and were more guarded in your conversations with them. It seems you became unhappy at this time.
43You were failing financially. Although you worked hard, you were paid on commission and your earnings at this time were only about $60,000 yearly. You married in 2017 but this marriage quickly became unhappy. Your wife was studying and you had to support her and pay her tuition fees. Instead of being able to send money home, you had to ask your parents for money. You found this humiliating.
Defence Submissions
44Mr McMahon of Senior Counsel, who appeared with Mr Taafe, made submissions on your behalf at the plea hearing.
45A written outline of submissions was also tendered upon the plea (Exhibit A) as well as a number of references, and a psychological report (Exhibit F).
46It was submitted that the explanation for you behaving as you did was to obtain release from the pressures of reality by escape into a fantasy life, as well as obtaining sexual gratification.
47In respect of charges 1 and 2, the charges of procuring a sexual act by fraud, Mr McMahon submitted that they were very low-end examples of the offence.
48This submission relied on what were said to be the unusual dynamics of the offending. Mr McMahon went through the numerous texts messages between you and Ms Blank (Exhibit E).
49He submitted a close reading of the material, in connection with statements made by Ms Blank and referred to in the prosecution opening, demonstrated that she never intended to take part in sex work and was never really interested in becoming an escort, but rather it seems she became attracted to the game-playing involved, and the world that you were portraying to her.
50Mr McMahon described this as a complex dynamic underpinning the offending. I accept that Ms Blank may have had an ambivalent attitude to what was occurring. She was at times a willing participant in what was occurring and at times a reluctant participant. She was also at times threatened and fearful.
51Whatever her attitude and motivations, it remains that she was exploited and taken advantage of by you. You got sex from her on two occasions by lying about your identity and your role as a recruiter in a high-paying escort service.
52When, after 9 October 2018, it became clear to you that she was no longer interested in your schemes, you repeatedly threatened her in graphic terms with sexual assault and public humiliation which culminated in the threat to kill her.
53A psychological report authored by Peter Hanley, Provisional Psychologist, dated 1 November 2019, sets out how you had attended on him on 11 occasions beginning on 7 August 2019 and were accepted to participate in the Sex Offender Treatment Program (“SOTP”). It states, “Whilst Mr Zhang has made considerable efforts to address his problems, his progress has been slow so far. His progress appears to have been restricted by maladaptive features of his personality, including pervasive assumptions of entitlement, lack of empathy, and a permissive attitude toward the exploitation of others”.
54Given this, the report was only relied upon by defence to demonstrate your preparedness to seek treatment. It was submitted, however, that in combination with your hitherto good character, your lack of any pending matters, your remorse, and the salutary effect of your involvement with the criminal justice system, your prospects of rehabilitation were good.
55It was submitted that in all the circumstances, and to facilitate your rehabilitation through appropriate therapeutic components, a Community Correction Order was an appropriate sentence, or alternatively, a combined sentence of imprisonment and a Community Correction Order.
Prosecution Submissions
56The prosecution submitted that your offending was premeditated and persistent. Your victim was a young overseas student. Your offending involved threats which escalated in their seriousness. In respect of the second charge of procuring a sexual act by fraud, the prosecutor submitted that there were degrading aspects to your behaviour, and that your penetration of Ms Blank’s vagina without a condom and ejaculating inside her vagina was a further aggravating feature of that incident. The prosecution accepted your plea was an early one. The prosecution submitted that your prospects for rehabilitation were hampered by your lack of insight into your offending behaviour as described in Mr Hanley’s report. The prosecution submitted that the only appropriate sentence was a sentence of imprisonment comprising a head sentence and a non-parole period.
Conclusions
57As I expressed on the plea, the offending is serious. It was premeditated, involving the creation of a false online persona. It was persistent, albeit there were breaks in the communications between you and Ms Blank. You deceived Ms Blank for your own sexual gratification. I accept the prosecution submission that there were degrading aspects to your conduct in respect of charge 2, and that this occasion was aggravated by the failure to wear a condom and by you ejaculating inside Ms Blank’s vagina.
58You also exploited Ms Blank financially and caused her considerable fear. Your threats to her escalated and became nothing short of terrifying.
59I accept on the basis of your prior good character and lack of criminal history, your family support (your parents from China attended at the plea), your expressions of remorse, and at least your participation in treatment, notwithstanding your thus far limited progress under treatment, that your prospects for rehabilitation are good.
60You are not an Australian resident. You face mandatory visa cancellation if sentenced to a term of imprisonment of 12 months or more, although you may apply to have the cancellation overturned. First, I take into account the prospect of deportation renders a term of imprisonment more onerous. Secondly, that it destroys any opportunity to settle in this country. I take these considerations into account in sentencing.
61I also take into account that a term of imprisonment will be more onerous on you because you are alone in this country and, because English is not your first language, you may experience some difficulties communicating.
62In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did and I must deter you from repeating such behaviour. General deterrence is of particular significance in crimes involving the creation of fake online identities to deceive others, given the prevalence of social media platforms as a way of communicating and connecting with others.
63I must express the community's denunciation of your conduct but I must also promote, if possible, your rehabilitation.
64I was taken to, and have regard to the case of Onnis v The Queen [2013] VSCA 271. In that case, sentences of 30 months and on one charge 33 months were imposed on rolled-up charges of procuring sexual penetration by fraud. The offending was aggravated by the appellant recording his victims. The appellant also had a relevant prior conviction for sexual stalking and was sentenced as a serious sexual offender on all but the qualifying charges.
65I take into account the effect your crime has had upon your victim.
66I must have regard to current sentencing practices and to maximum penalties. In short, I must try and balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all of the circumstances of the case.
67I had you assessed on the urging of your Counsel for a Community Correction Order. You were assessed as suitable, however, while a Community Correction Order is punitive in nature, its punitive element is insufficient to reflect the gravity of your offending. I am satisfied that I have no alternative but to impose a sentence of imprisonment and it is appropriate that there be a head sentence and a non-parole period.
68Could you stand up please, Mr Zhang?
69On Charge 1, I sentence you to 18 months imprisonment.
70On Charge 2, I sentence you to 20 months imprisonment.
71On Charge 3, I sentence you to 6 months imprisonment.
72On Charge 4, I sentence you to 6 months imprisonment.
73Charge 2 is the base sentence. I order that six months of the sentence on Charge 1, two months of the sentence on Charge 3, and two months of the sentence on Charge 4 be served cumulatively.
74This makes a total effective sentence of 30 months. I am directing that you must serve a period of 20 months before you are eligible for parole.
75Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 4 years, with a non-parole period of 3 years.
76Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served NIL days of the sentence I have passed upon you and I direct that this be entered into the records of the court.
77I make the forensic procedure order per the application made by prosecution. The seriousness of the offending warrants the making of the order.
Discretionary Registration under SORA
78The prosecution has applied for discretionary registration under s 11 of the Sex Offenders Registration Act 2004 (Vic) (“SORA”).
79There was dispute between the parties whether charges 1 and 2 were class 3 or 4 offences under the Act.
80Ultimately, I do not have to reach a conclusion on that issue because I am not satisfied that you represent a threat to the sexual safety of the community in the future. Your offending was not one-off but I do accept that it occurred in the context of your situation at the time, and although you do, as Mr Hanley has described, still lack insight into your offending, I accept that you are taking steps to address your offending .
81I decline to make an order for discretionary registration.
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